Medical Information as a Hot Commodity: The Need for Stronger Protection of Patient Health Information
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Medical Information as a Hot Commodity:
The Need for Stronger Protection of
Patient Health Information
N. NINA ZIVANOVIC*
INTRODUCTION
Medical data has always demanded more privacy protection
because of its personal nature, as well as its value. Employers,
insurance companies, pharmaceutical data mining companies, drug
manufacturers, and medical researchers all want access to medical
information regarding patients' medical histories, diagnoses,
prognoses, and treatments.' These entities seek medical information
to conduct research, assist treatment, provide coverage, assess
opportunities, process claims, and market products.2 Current law
governing patient medical information allows certain entities to
access this information, and even allows data miners to sell or license
prescription information to drug manufactures and advertisers for a
profit.3
The Health Insurance Portability and Accessibility Act
(HIPAA)4 regulations provide some protection for medical data that
is personally identifiable,' but fails to protect de-identified data.6
Data re-identification is the process of matching various fragments of
a person's information to deduce that person's identity.' Studies
* J.D. 2014, University of San Francisco School of Law; B.A. English Literature 2009, California
State University, Northridge. The Author wishes to extend her deep appreciation to University
of San Francisco School of Law Professor, Susan Freiwald, for her invaluable guidance and
assistance on prior drafts. The Author further wishes to thank her parents and brothers for their
constant support and encouragement.
1. See Christopher R. Smith, Somebody's Watching Me: Protecting Patient Privacy in
Prescription Health Information, 36 VT. L. REV. 931, 933 (2012).
2. Id.
3. Jennifer L. Klocke, Prescription Records for Sale: Privacy and Free Speech Issues
Arising From the Sale of De-Identified Medical Data, 44 IDAHO L. REV. 511, 512 (2008).
4. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191,
110 Stat. 1938 (1996).
5. Protected health information under HIPAA is individually identifiable health
information. Identifiable refers not only to data that is explicitly linked to a particular
individual .... It also includes health information with data items which reasonably could be
expected to allow individual information. See De-Identified Health Information (HIPAA),
UNIV. OF MIAMI, http://privacy.med.miami.edu/glossary/xd-deidentified-health-info.htm (last
visited Apr. 24, 2015) (providing a list of potential identifiers).
6. See Smith, supra note 1, at 935; see also De-Identified Health Information (HIPAA),
supra note 5 (1ljnformation is considered de-identified if [the listed potential identifiers] have
been removed, and there is no reasonable basis to believe that the remaining information could
be used to identify a person.).
7. Re-Identifcation, ELEC. INFO. PRIVACY CENTER,
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Medical Information as a Hot Commodity: The Need for Stronger Protection of Patient Health Information
Medical Information as a Hot Commodity: The Need for Stronger Protection of Patient Health Information